Category Archives: copyright infringement

Does a person have a copyright in her picture if she has not obtained a registration from the United States Copyright Office? The answer is yes and no.

Generally, a person will have a common law copyright in a picture that they have taken. A good example is a “selfie,” i.e. a picture taken of oneself with a cell phone. Under certain circumstances, the common law will provide enough rights to allow someone to send a cease and desist letter if a picture is being used without consent.

However, the better approach is to file an application with the United States Copyright Office. The reason is that this provides for enhanced protections (statutory damages and attorney’s fees reimbursement).

According to a decision by the U.S. District Court for the Southern District of New York last month, a lawsuit against hundreds of defendants who allegedly engaged in infringing activity when they shared adult entertainment film files through peer-to-peer networks will proceed. In re Adult Film Copyright Infringement Litigation¸ No. 11 Civ. 7564 (March 26, 2012).

The plaintiffs in that case are owners of copyrights or the exclusive rights to various adult-entertainment films. They are alleging that the defendants, who remain unnamed (“John Doe defendants”), infringed on the plaintiffs’ copyrights by duplicating and distributing their copyrighted films through file-sharing software. The Court had previously consolidated the actions, allowing the plaintiffs to join the defendants and sue them as one group.

Four defendants filed a motion to dismiss or sever the various claims against them. Their basis was that joining them in the same case was improper under the standard set forth in Federal Rule of Civil Procedure 20(a)(2). That Rule sets forth the following standard for permissive joinder of defendants:

1) any right to relief is asserted against them jointly severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

2) any question of law or fact common to all defendants will arise in the action.

F.R.C.P. 20(a)(2).

The Court disagreed. It determined that joinder was appropriate, finding that the plaintiffs’ allegation met the requirements of both a common transaction or occurrence and common question of law or fact. First, the plaintiffs alleged that the Doe defendants traded not only the same film, but the same exact file of the copyrighted work. The Court found that this alleged sharing – through a “peer-to-peer network” that uses “swarm” system to distribute to network users – was sufficient to assert a common transaction or occurrence. Second, the Court found that there were common questions of law because the allegations against each Doe defendant are identical. The Court dismissed the motions without prejudice. (The Court also noted that severance, not dismissal, would be the appropriate remedy for misjoinder. F.R.C.P. 20, 21.)

The case will now move forward with the plaintiffs’ claims for copyright infringement pursuant to the U.S. Copyright Act. 17 U.S.C. §§101.

Internet Picture Removal[MUSIC PLAYING] One of the issues that has come up again and again in our practice relates to the wrongful posting of information about another person on the Internet. This is another example of how the law has simply not kept pace with the developments that have occurred in the 21st century. It used to be that when someone gossiped about another person, or said something that wasn't true, that ancient concepts of defamation, concepts of interference with someone else's business or prospective economic advantage, these common law concepts would protect the person. It used to be that when you gossiped about somebody else, you did it in the town square. You did it at a community meeting. You did it behind closed doors. Needless to say, that's not the situation anymore. Now when someone wants to say something about someone else that's not true, when someone wants to defame them and hurt their reputation, all they need is a computer, an Internet connection, and a bad motive, and they can literally make a worldwide comment about this person. They can post something that can be seen in every country in the world. Millions of people. How do you deal with that from a legal perspective? And the answer is that there are techniques that we can use. They are not perfect and they're not complete. But there are techniques. For example, what was it that this person said? Was it opinion? Or was it a fact? And if it was a fact, can it be proven to be an untrue fact? Can it be proven that this person knew that it was untrue or that it was said negligently? All these questions come into play in the context of something that is said that should not have been said because it was possibly defamatory. But there's another level. And the other level is, can we find a way to say that this is also a violation of intellectual property rights? In other words, think about it. Did this person lift a picture from a website that they didn't own? Or took it from a camera or cell phone if they didn't have access to? And they should not have access to it. And somehow, they got a hold of it. And they posted it as part of the possibly defamatory material. Wouldn't that begin to state a claim for infringement of intellectual property? And if so, is there a way of being creative in the representation in the legal analysis so that we're not limited to whether this thing was true or not? Certainly we're not limited to whether it was a bad thing to say or not. We know that. It was a bad thing to say. But also is there legal significance to what they did that goes beyond the truth of the matter? These are the sorts of questions that we ask when we deal with people who are the victims of wrongful posting. There's this new concept of revenge pornography that is taking our culture by storm. In essence, it's someone taking a picture, often from a girlfriend or boyfriend, a picture that was taken in the privacy of that relationship. And after that relationship is over, that one of the people taking and posting the picture online, making it publicly available in order to humiliate or otherwise punish the person after breaking up with them. Hence the term revenge pornography. Unfortunately, the minute a picture is taken and shared on the Internet, it becomes instantly available to an exponential number of people. Once it's on one website, a lot of times these adult websites have a tendency of just stealing pictures. So it's not the fact that they have the rights to it and are going to prohibit their competitors from taking it. But there tends to be a common practice in the industry of it being on one website. The next website steals it, posts it, and it just is an ongoing effect where one person posted one picture. And all of a sudden, it's everywhere. And now you're dealing with innumerable websites that you now have to contend with to get the picture actually removed from the Internet. Unfortunately, this is a little bit of a unique legal situation in that the clients are often dealing with a huge emotional undertone to this representation. They are often coming to us having been humiliated. They are embarrassed that the pictures are out there. They don't want their employer, their kids, their kids' friends, or even sometimes their spouses to know that these pictures exist. We have to sit there and say, very dispassionately, very objectively, is this the kind of thing that we'll be able to convince a judge violated the law? Our firm welcomes inquiries about this sort of thing. It's something that we take very seriously. And it's something that we like to help with as necessary. [MUSIC PLAYING]